Articles Tagged with FMLA

CFRA leave expanded in CaliforniaUp until now, California workers were eligible to take CFRA / FMLA leave to only care for their immediate family members, subject to a number of other criteria. Assembly Bill 1041, would expand CFRA to permit an employee to take job-protected leave to care for a “designated person.” The bill defines “designated person” as any individual related by blood or whose relationship with the employee is the “equivalent of a family relationship.”  The bill provides that the employee may designate a “designated person” in advance and that an employer may limit an employee to one designated person per 12-month period.

Of course, the above “equivalent of a family relationship” language is extremely vague, and we hope that future amendment and / or litigation will clarify what this means exactly and to avoid abuse by interpreting this language way too broadly.

The other question is whether an employee can designate a “designated person” after the need to take leave to take care of that person arises. The current language states that the employee “may designate … in advance”, so at least based on the plain reading of the language of this new law, there appears to be no prohibition against after-the-fact designation.

when your fmla leave is deniedAn employer who without intent to deceive makes a definite but erroneous representation to this employee that he is eligible for FMLA leave and has reason to believe that the employee will rely upon it, may be estopped to later claim that an employee wasn’t eligible for FMLA and therefore should not have been granted that leave. It does not matter for the purposes of this issue whether the employer intentionally mislead the employee initially about being eligible for FMLA or whether it was an innocent mistake on that employer’s part.

A number of cases recognize this doctrine of “equitable estoppel”. The Kosakow v New Rochelle Radiology Assocs. (2001) court held that the employer was estopped to claim that the employee was not eligible for FMLA when the employer’s unintentional misleading behavior caused the employee to justifiably rely on the FMLA leave. In Woodford v Community Action of Greene County, Inc. (2001) the court cited with the employee, where the employer initially approved notice of eligibility for FMLA leave, but later sought to challenge it.

This doctrine of equittable estoppel is an important tool for employees who initially have their

working-while-on-fmla-leaveMany employees who request leave under FMLA (Family Medical Leave Act) for one of the approved medical conditions are concerned about their ability to work at a different job, possibly part time, while being on FMLA leave. The are some good news for employees on FMLA. The California Supreme Court recently held in Lonicki v. Sutter Health Central that if a full-time, during the period in which medical leave was sought, continued to perform a similar job for another employer on a part-time basis, this does not conclusive establish the ability to do the job for the original employer. A showing that an employee is unable to work in the employee’s current job is enough to demonstrate incapacity.

The court further explained that when a serious health condition prevents an employee from doing the tasks of an assigned position, this does not necessarily indicate that the employee is incapable of doing a similar job for another employer. For example, a job in the emergency room of a hospital that commonly treats a high volume of life-threatening injuries may be far more stressful than similar work in the emergency room of a hospital that sees relatively few such injuries. And again, the circumstance that one job is full time and the other is part time may be significant.

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